There are many reasons a spouse could seek termination or modification of a Brooklyn spousal support order. One of those very likely to gain the attention of the court is a serious illness by either party.
Spousal support, also sometimes referred to as “alimony” or “maintenance” is no longer the given that it was even just a few decades ago. Back then, spousal support was typically ordered paid to the wife by the husband either indefinitely or unless and until she remarried.
However, most families today are structured so that the wife is often an equal if not higher wage earner than the husband. In these cases spousal support is either not awarded or it is very limited in both scope and duration.
Factors that a judge will consider in awarding spousal support include:
- The duration of the marriage and the age and health of both parties;
- The present and future earning capacity of both parties;
- The ability of both to become self-supporting;
- The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
- The presence of children;
- Tax consequence.
Even once the judge sets the order, it’s not carved in stone. A substantial change in circumstances will prompt the court to revisit the issue, as spelled out in New York Domestic Relations Law, Article 13, Section 236.
A good example of this was recently highlighted in the case of In re Marriage of Sisson, reviewed by the Iowa Supreme Court.
Here, the two parties had been married for 11 years when the husband filed for divorce. He was 36. His wife was 47. They had a 10-year-old daughter. At the time, the father was earning $225,000 annually at his private accounting and tax practice. His former spouse hadn’t worked since the birth of her daughter, but since their separation began working as a retail manager, earning about $40,000 annually. She then decided to return to school to become a cosmetologist. The divorce was finalized, with both parents awarded joint custody of the child and the father ordered to pay both child support and spousal support to his ex-wife over the course of the next eight years, until their child had graduated high school.
A few months later, the father remarried. A few months after that, the ex-wife began to experience tremors in her hands. The immediate impact of this was that she decided to forego cosmetology school, and returned to work as a retail manager.
However, it was not long before it was revealed that the tremors were a precursor to something much worse. She was diagnosed with a form of terminal blood cancer. She was in the early stages, but was given between five to seven years to live.
With this new diagnoses, the ex-wife sought to modify the spousal support payments, as her ability to work had been greatly diminished and the cost of her health care expenses now soared. The ex-husband countered that he should be awarded full physical custody of their daughter.
Ultimately, the family court rejected the ex-husband’s request for sole custody, finding that the mother’s illness had not at that point become an impediment to her role as caregiver. Further, the court increased her monthly maintenance and extended it indefinitely until the end of her life. Practically speaking, this would likely be less time than the original order, but the ex-husband appealed on the grounds that it was too high and there was no stipulation for the payments to end in the event his former wife remarried.
The state high court affirmed the earlier ruling of the family court, finding no abuse of discretion.
Generally, courts will not order spousal support to be paid for an indefinite period of time, except under circumstances that are deemed extraordinary. A terminal illness developed less than a year after the finalization of the divorce decree meets this standard.
Modification might also be warranted in cases where the party who pays the support has been stricken with a serious illness or condition.
To determine whether you have strong grounds on which to request a spousal support modification, it’s important to first consult with an experienced family law attorney.
Call Gilmer Law Firm, PLLC at (718) 864-2011.